Investigated: Are 'fangames' legal?

Imagine that you've just spent the last eight years of your life toiling away at a tribute to your favourite game series.

You've fashioned an exhaustive and comprehensive remake of your most loved game, drawing and coding its 20 characters and 100 stages from scratch.

And then, imagine just days after your labour of love hits the internet, packaged as a free PC download for other like-minded fans to enjoy, the owner of the original game serves you with a cease and desist letter, telling you in no uncertain terms, to pull your decade-long magnum opus from the web, or face the consequences.

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That was the crushing story for Spanish coder "Bomber Link", whose Herculean tribute to Streets of Rage got shut down by Sega's legal team in April, just days after the eight-year project hit BitTorrent and Rapidshare. But it's a familiar story to many fans who have had their tributes, remakes and unofficial sequels quashed by game publishers.

Nintendo killed off online Pokemon battler Pokenet and fan-made Zelda film The Hero of Time, Square-Enix shut down unofficial Chrono Trigger sequel Chrono Resurrection, and fan-made

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King's Quest follow-up The Silver Lining fell into a legal wormhole as Vivendi and Activision constantly changed their minds over whether the fan game was kosher.

Expressing your admiration for a game in interactive form just doesn't seem to be worth the hassle -- your labour of love can easily end in heartbreak if the publisher's legal team gets involved. But what are your rights when making a fan game? Should amateur creators bow down to pressure, or stand up and fight for their cause?

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So, is it legal to make a fan game?

Wired.co.uk spoke to Alex Tutty, a digital media IP expert from London-based solicitors Sheridans, who's advised and represented clients in relation to areas like games, apps, website development and virtual goods. He's seen a rise in fan games too ("Whether this is due to the accessibility of tech to create them or just that people are getting nostalgic, I don't know," he remarks).

Essentially, a game like Streets of Rage Remake or

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Chrono Resurrection would be seen as simple trade mark or copyright infringement, and considering that these games slavishly emulate or reference the games in question, it would be effortless for a legal team to demonstrate the infringement in court.

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"To the extent that a fan game uses the title of the game it is paying homage to in its title, this may be trade mark infringement," explains Tutty. Take Streets of Rage Remake, which uses Sega's trade marked phrase, "Streets of Rage", in its name.

Even if you alter the name ("perhaps Roads of Rage", Tutty suggests), if Sega can "show that the fan game has used a similar mark for similar/identical goods and that there is confusion," they'll win.

If the name is changed dramatically, the publisher could zero in on copyright. "Games are protected by copyright in the source code and in the representations on the screen as artistic works," explains Tutty, which gives them the same rights as books, paintings and photos.

"In order to demonstrate copyright infringement, the owner of the original would need to show that a substantial part of a screen shot in the original is copied in the fan game," says Tutty. "Where the fan game copies the original exactly then there is obviously a huge issue here.

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"Effectively what you have in these instances are huge fans of a game being treated the same as other trade mark or copyright infringers despite having the best intentions," Tutty declares, hitting the nail squarely on the head. Aren't these the most loyal, vocal and hardcore customers? Shouldn't publishers be embracing these projects, rather than suppressing them?

Unfortunately, by ignoring these infringements companies would be putting their hard-earned trade marks and copyrights in danger. "If a company was to continually ignore infringements of a trade mark, the protection afforded by the mark is eroded and may render it invalid," Tutty explains. Essentially, if Sega let

Streets of Rage Remake live, it'd have a harder time arguing its case if a real, bonafide rip-off of the beat 'em up emerged. The same goes for copyright.

"Once the infringement of IP is ignored it becomes increasingly hard to recover lost ground," Tutty says. It's a not-so-simple case of use it or lose it.

This is the exact argument that Sega gave when booting out

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Streets of Rage Remake. "We need to protect our intellectual property rights and this may result in us requesting that our fans remove online imagery, videos or games in some instances," a spokesperson for Sega told Wired.co.uk at the time.

Seeking permission

So no, without consent, making a fan game is not, generally speaking, legal. There is something that creators can do if they want to make a fan game however, and avoid receiving a nasty cease and desist in their inbox. "Fans who wish to make fan games can approach the owner of the original and request a licence," Tutty says. "The benefit of this is that a company has control over third party use of its material and generates a revenue from it.

"There is no obligation for this to be granted, which leaves the fans in an unenviable position," Tutty says. You'll have a hard job getting any of the famous game makers to grant you a license -- Streets of Rage Remake developer Link says the crew notified Sega, long before the game's release, but heard nothing back.

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What about Valve, the Washington-based creator of Half Life and Portal, which has embraced the eternally-delayed Half Life 1 remake, Black Mesa Source? In a 2007 news post, the firm said, "We're as eager to play it here as everyone else."

By acknolweding its existence, and publically endorsing it, Valve could argue that it made an implied licence. "By taking steps to acknowledge the specific fan game and publicise this," Tutty says, "Valve has made this endorsement specific to one game, rather than a general blanket ignoring of all infringements."

For fans looking to pay homage to their favourite game, while there are more tools, communities and outlets for their creative ambition than ever, its still a legal minefield with few loopholes to protect you. If you fancy making a fan game, its probably best to ask first, or just go and make something unique.